News & analysis of the United States Court of Appeals for the Third Circuit, by Matthew Stiegler

More on the Weev / Auernheimer case

Ho hum, just another news profile of a successful CA3 appellant: an article on Backchannel by Adam Penenberg about hacker activist Andrew Auernheimer, whose criminal conviction Orin Kerr persuaded the Third Circuit to vacate on venue grounds last year. My prior posts on the case here, here, and here.

The whole article is worth the read, but here’s the part discussing the appeal:

Even before sentencing, [trial defense counsel Tor] Ekeland had begun working on the appeal, lining up the Electronic Frontier Foundation (EFF) and George Washington University law professor Orin Kerr, a leading legal expert on computer crime. Kerr didn’t believe that Auernheimer (and Spitler, who pleaded guilty and received three years probation and the same 73 grand in restitution as weev) had committed unlawful access. He also questioned why the case warranted a felony conviction. They didn’t pilfer passwords or hack into any servers. They found a gaping security flaw in AT&T’s network. He disagreed with the restitution, which by law was supposed to cover AT&T’s losses, yet the company had never claimed any. Also joining Ekeland’s team were Hanni Fakhoury from Electronic Frontier Foundation; Marcia Hofmann, a former EFF staff attorney who had gone into private practice; and penning a brief in support was Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society. Without them, Ekeland says he could never have marshalled the resources and knowhow he needed to launch the appeal.

But it was Kerr who would argue the case before the court, which was fine by Ekeland. “When you have Mariano Rivera to come in and close your game, you don’t go out and fucking pitch yourself,” he says. They faced an uphill battle: only 8.7% of cases on the Third Circuit are reversed on appeal.

In addition to his objections with the CFAA, Kerr was disturbed by the government’s choice of venue — transporting Auernheimer from his Arkansas home to stand trial more than a thousand miles away from his family, friends and resources, adding tens of thousands of dollars to his trial expenses at a whim. A mere fraction of the email addresses he had scraped from the servers belonged to Jersey residents; the harm to the state was, at most, circumstantial.

* * *

On March 19, 2014, Ekeland was in Philadelphia to appear with Kerr and lawyers from EFF before the Third Circuit, which covers New Jersey and other Eastern states. The courtroom was packed, and a crowd watched on a monitor in the hallway. Security was tight. U.S. marshals brought a box of plastic handcuffs and some explosive-sniffing dogs. Kerr had just begun his remarks when one of the justices cut him off, telling him he wanted to discuss the issue of venue. The three justices wanted to know why the trial was held in New Jersey.

Ekeland couldn’t believe it. They were parroting lines from his own briefs from the trial, as well as Kerr’s. As the proceedings dragged on, it was clear they were hostile to the government’s arguments. One even reminded the government lawyer that venue is mentioned in two places in the United States Constitution.

It sure is, baby! Ekeland thought.

Afterward, as the room cleared of weev’s supporters, one of the judges joked, “We have other interesting cases today, you know.”

I can attest to the tight security at the argument. Besides what the article mentions, there also was a second metal-detector set up outside the courtroom–that’s the only time I’ve ever seen that.